Introduction

Media law is the legal framework, some may say “theatre”, for resolving conflicts between individuals and the media. The essential conflict is between protection of reputation, privacy, and the right to a fair trial on the one hand; and freedom of expression and open justice on the other. Society as a whole has a stake in this conflict. It is to society’s benefit that reputational and privacy values are not wrongly tarnished or invaded. Likewise, any free and democratic society cherishes as inviolate the right to a fair trial. The public’s right to know is also crucial to the proper functioning of a free and democratic society. Section 14 of the New Zealand Bill of Rights is broad-based. It speaks of everyone having the right to freedom of expression including the freedom to seek, receive and impart information and opinions of any kind in any form. The principle of open justice is set out in s 185(1) of the Criminal Justice Act 1985. It is departed from only in exceptional circumstances pursuant to the statutory code in ss 185 to 140 of the Act.

The crucial issue to be determined in media law is not whether one right takes precedence to the exclusion of other rights, but, rather, how seemingly competing rights can be accommodated in any given circumstances. It is the courts that determine where the balance lies, and what is of public concern. As with other Bill of Rights issues, the court becomes engaged in issues of proportionality, making value judgments on behalf of society as to the qualitative value of the information that the media may wish to impart.

We also have a statutory body, the Broadcasting Standards Authority, which provides a less formal process for dealing with broadcasting journalistic standards - the key ones of which are accuracy, fairness, balance, and privacy. The Press Council of New Zealand deals with much the same issues as far as the print media are concerned. Invariably, however, if a broadcast or publication is in the public interest, freedom of expression principles will prevail over any shortcoming from other standards.

The three major topics of media law - reputation, privacy and contempt - are inter-related. The same core values underlie each. Often a defamation issue raises a privacy issue, or is disguised as such. Likewise, suppression orders invariably have as their basis protection of some privacy interest. The media must take care to ensure that their reporting of trials, whether criminal or civil, are fair and accurate, otherwise they run defamation risks. And underlying all are journalistic standards, and a move towards responsible journalism. If standards of accuracy, fairness and balance in particular are maintained, there is less chance of a media report being defamatory, breaching privacy, or running foul of fair trial rights.

What then are the major developments in defamation, privacy, and with court reporting.

With regard to the law of defamation, the key questions remain:

Is what was published or broadcast defamatory?

Is the claimant identified?

What is the precise defamatory meaning?

Was it true?

Was it honest opinion?

Does statutory or common law qualified privilege apply?

What are the damages?

While the courts have considered ss 8 and 10 of the Defamation Act 1990, the defences of truth and honest opinion respectively, and pleading issues, the major recent developments have been in the defence of qualified privilege with judicial recognition of responsible journalism and neutral reportage. This first appeared in New Zealand in Lange v Atkinson [1998] 3 NZLR 424; [2000] 3 NZLR 385, and in the United Kingdom in Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010. Prior to these cases, the defence of qualified privilege was not available to the media in their reporting to the world at large. For qualified privilege to apply it was necessary to establish a corresponding duty and interest between the publisher and the recipient of the information. The general public did not qualify in this respect. Lange and Reynolds extended qualified privilege to the media when reporting on politicians past, present and future to the general public.

The Privy Council and House of Lords have now further extended the qualified privilege defence to where the media have acted responsibly raising issues of public concern, or where they have neutrally reported matters of public concern. In Bonnick v Morris [2003] 1 AC 300 para 23, Lord Nichols said that “responsible journalism is a point at where a fair balance is held between freedom of expression on matters of public concern and the reputation of individuals”. In Jameel v Wall Street Journal Europe [2007] 1AC 359, para 109, Lord Hope referred to the cardinal principle that any incursion into press freedom should not be excessive or disproportionate. Recently the Court of Appeal in England summarised the rapid developments in the defence of qualified privilege and responsible journalism in Roberts v Gable [2008] 2 WLR 129 and Charman v Orion Publishing Group Ltd [2008] 1 All ER 750. Harrison J has also extended the scope of the defence and the test for responsible journalism in Osmose New Zealand v Wakeling [2007] 1 NZLR 841.
The current legal approach appears to be this: if the issue the media wishes to report and comment on is of public concern and the media act responsibly, then the courts will apply the defence of qualified privilege to give full force and meaning to freedom of expression rights. As Lord Hoffmann said at para 38 in Jameel:

Until very recently, the law of defamation was weighted in favour of claimants and the law of privacy weighted against them. True but trivial intrusions into private life were safe. Reports of investigations by a newspaper into matters of public concern which could be construed as reflecting badly on public figures, domestic or foreign, were risky. The House attempted to redress the balance in favour of privacy in Campbell v MGN Ltd [2004] 2 AC 457 and in favour of greater freedom for the press to publish stories of genuine public interest in Reynolds v Times Newspapers Ltd [2002] 2 AC 127. …

Qualified privilege is also extended to cover the reporting of the statements of others without adopting or affirming the truth or otherwise of what is stated. The application of neutral reportage will depend very much on who is being reported, and the subject matter of what is being said. The defence is unlikely to protect a defamatory statement where the issue is not one of public concern. Sensationalism is unlikely to be protected, nor is the unwarranted prying into personal life where no public concern issues arises.

This leads on to privacy. In Hosking v Runting [2005] 1 NZLR 1 the Court of Appeal held that there was a tort of invasion of, or interference with, privacy in New Zealand. Since then, the new tort has been considered in a defended High Court privacy trial (Andrews v Television New Zealand Ltd, Auckland 15 December 2006), and in a prior restraint case that went to the Supreme Court (Rogers v Television New Zealand Ltd [2007] NZSC 91). In both cases the courts considered whether the facts gave rise to an expectation of privacy; whether the disclosure of those private facts would be considered highly offensive to a reasonable person, and who was that reasonable person. Significantly, the defence of legitimate public concern defeated any privacy claim in both cases.

The differences of approach in the majority and minority judgments in the Supreme Court in Rogers could not be more marked; to such an extent that Elias CJ, in the minority, was left with a sense that there may have been an injustice to Mr Rogers. The majority judges held, however, that even if there could be a reasonable expectation of privacy in someone supposedly confessing to murder, the public interest in the transparency of court decisions at all levels outweighed any privacy concerns.

England has accommodated breach of privacy in the law of confidence, coupled with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom. Unlike our Bill of Rights Act, Article 8 specifically protects private and family life. Again the balancing act has been with freedom of expression rights. The cases involving Michael Douglas and Catherine Zeta Jones, and supermodel Naomi Campbell are now well known. Since these cases, protection of privacy by the courts has featured such claimants as HRH Prince Charles, author JK Rowling, Elton John, and the C&W singer Loretta McKennitt. At the same time, the English Courts have been attempting to conform with Strasbourg privacy jurisprudence in a case involving Princess Caroline of Monaco; and even then the European Court decision has some compelling dissenting judgments.

Considerable uncertainty still surrounds the new tort:

What are private facts that warrant the protection of the law?

What point in time does the expectation of privacy arise – when the events take place, or the publication/broadcast of them?

Who is the objective reasonable person to whom disclosure of the private facts would be considered highly offensive – is it the objective reasonable person, or the objective reasonable person in the shoes of the claimant.

What about the culpability or blameworthiness of a claimant?

And do the principles of prior restraint that apply in defamation also apply to breach of privacy?

Is the interest that is sought to be protected a reputational one; or truly a private fact where the defence of truth is no defence?

Is the rule against prior restraint being undermined by the emerging tort?

Privacy values extend to the criminal law. Recently, privacy featured large in the attempts by the French agents Alain Mafart and Dominique Prieur to prevent TVNZ searching and copying a court file, and broadcasting a CCTV tape of the agents pleading guilty to manslaughter as a result of the bombing of the “Rainbow Warrior”. Previous attempts to obtain the footage had been unsuccessful because the courts held that the agents’ privacy rights after trial outweighed any public interest. This approach to privacy changed in R v Mahanga [2001] 1 NZLR 641, where the Court of Appeal held that a balance had to be achieved between freedom of expression, privacy and any issues with regard to the administration of justice.

This leads on to general media reporting of police investigations and the court process. Although different issues arise at the various stages of the criminal process - pre-arrest and first appearance in court; depositions and trial; and after verdict – the starting point is that open justice applies at all stages of the criminal process. Fundamental to the media at all stages is the concept of timeliness, that is, the contemporaneous reporting of events as they happen. News has some quality of timeliness about it, either because it relates to something happening immediately, soon or recently; or because it reveals something that the public previously didn’t know. News is something of significance or consequence or interest to the public. It has human application. Matters of controversy have high news value, particularly when public decisions hinge on the outcome of public debate.

It is the imperative of the media to report events as they happen, and how news is presented, that leads to tension with the criminal law process, and in particular fair trial rights. The courts have accepted that the ability of the media to publish or broadcast information contemporaneously with its newsworthiness is an integral part of the principle of freedom of expression. They have also acknowledged that it is not their role to decide what is newsworthy, or how news and current affairs should be presented. However, the right to a fair trial is as near absolute as any right. As the Court of Appeal said in R v Burns (Travis) [202] 1 NZLR 387 para 10: “No right is more inviolate than the right to a fair trial”.

No one would dispute the inviolate right to a fair trial. The challenge lies in the accommodation of freedom of expression and open justice with the right to a fair trial. As the Court of Appeal said in our leading contempt case Gisborne Herald Limited v Solicitor General [1995] 3 NZLR 563; 573:

So far as possible, both values should be accommodated. But in some cases publication for which free expression rights are claimed may affect the right to a fair trial. In those cases the impact of any intrusion, its proportionality to any benefits achieved under free expression values, and any measures reasonably available to prevent or minimise the risks occasioned by the intrusion and so simultaneously ensuring protection of both free expression and fair trial rights, should all be assessed.

The court endorsed McLachlin J’s statement in Dagenais v Canadian Broadcasting Corporation. [1994] 3 SCR 835 that what must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered. The Gisborne Herald test applies at each stage of the criminal process, up to and including publications or broadcasts during the trial itself.

Significantly, the New Zealand Law Commission in its Preliminary Paper 37 Volume 2 “Juries in Criminal Trials” (November 1999) concluded that jurors were rarely aware of sufficient detail of pre trial publicity to enable them to form any bias or prejudgment. Likewise, they conscientiously made an effort to put that aside, and focus upon the evidence in reaching a verdict. In this respect they followed the standard directions given by judges at criminal trials.

The Court of Appeal endorsed the Law Commission findingsin R v Burns (Travis) (No 2) [202] 1 NZLR 410 and noted they were cited in the Privy Council decision Montgomery v HM Advocate [2001] 2 WLR 779, 809. The Law Commission’s report has now been cited in numerous District Court and High Court decisions since then. In Gilbert v R [2000] CLR 414, McHugh J postulated that unless the courts acted on the assumption that criminal juries act on the evidence, and in accordance with the directions of the trial judge, there was no point in having criminal jury trials.

Up to and during trial, freedom of expression has been suspended or delayed. After the jury has delivered its verdict further information about an accused and events will be put in the public domain. If there is a guilty verdict this will likely include previous convictions and also evidence that has been ruled inadmissible. The fact that there is invariably an appeal on serious charges, with the possibility of re-trial, it is not sufficient to suppress freedom of expression. As the court said in Burns, any re-trial would obviously follow the sentencing process, and reporting that process cannot be crimped. Many re-trials begin with the general public being aware of the result of the previous trial, and the evidence which emerged in the course of that trial. Significantly, Burns was one of those rare cases where the court made an order suppressing background material implicating Burns in another murder, until after the hearing of his appeal, and any possible re-trial.

The question is often asked whether the media are pushing the boundaries, particularly when it comes to reporting crime and police investigation and the court process. In a similar vein, is the media too intrusive and ratings-driven at the expense of reputation and privacy? Is the media more interested in the sensational, and the trivial? Law Commission President Sir Geoffrey Palmer recently said that politics in New Zealand tends to be reported by the media as a variety of sport or theatre with dangerously little policy analysis of the choices made or rejected. Callinan J, the dissenting judge in the leading Australian decision on privacy ABC v Lenah Game Meats Pty Limited (2001) 208 CLR 199, referred to there being few articles today reporting on what people have said that are free from the author’s “spin” on it. The judgment reads like an updated version of Warren and Brandeis’s influential article “The Right to Privacy” (1890) 4 Harvard Law Review 193.

Whether these perceptions reflect what goes on in the media today will depend very much on individual perceptions and judgments as to how the media fulfill their crucial role in a democratic society. Suffice to say that if it hadn’t been for the media we would have had no Watergate or Wine Box. The media may well have to push the boundaries to fulfill their watchdog and bulldog role in society. As Eady J said in WB v H Bauer Publishing Limited [2002] EMLR 8, a case involving a media challenge to a jury acquittal of the claimant on a rape charge:

It cannot be right that a person who has been acquitted of a criminal charge, or against whom proceedings have been discontinued by the prosecuting authority, is never to be subjected to a further inquiry (eg through investigative journalism) with a view to establishing whether he truly was the culprit. There are remedies in libel if the media, having carrying out such investigations, choose to publish allegations which they are unable to prove. It would in my view be a startling restriction upon their freedom of expression if they were also to be restrained by a (judicially imposed) law of privacy even in circumstances where they were willing to mount a defence of justification (40).

The idea that the investigation and exposure of wrong doing is, or ought to be the exclusive province of the police and the criminal justice system, bears little relation to reality in Australia, or any other free society. There are heavily governed societies in which the police and other public authorities have the exclusive capacity to make, and pursue, allegations of misconduct; but not in ours.

….

… If the expression “trial by media” means any public canvassing by the media, outside the reporting of court proceedings, of the merits of topics which could become, or are, the subject of civil or criminal litigation, then we are surrounded by it. The idea that the criminal justice system ought to be the exclusive forum for canvassing matters of criminal misbehaviour is contrary to the way our society functions in practice (para 26).

The reality may simply be in Baroness Hale’s observation in Campbell:

One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all.

There have, of course, been other recent developments in media law. For example, the new Evidence Act 2006 will impact on protection of a journalist’s sources; televising of courts at all levels has taken place pursuant to the In-Court Media Guidelines 2003; and the types of damages a company can claim in defamation has been clarified. But the real challenge in media law is the all pervasive power of the internet. The internet has created new issues in defamations. Postings of news stories on a news organisation’s website makes the potential for the defamation to be read by a very large audience indeed. Forum shopping as a result of internet defamations now challenge the courts on jurisdiction and innocent dissemination issues. New privacy concerns are raised by posting of personal information on MySpace and Facebook. Suppression orders can easily be overcome, by accessing suppressed information posted overseas. The challenges now created by the internet and other new technologies where news is instantly available on line are part of the rapid developments that the courts will need to increasedly concern themselves with in the rapidly changing discipline of media law.

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